Legal Update: Policies That Prop 19 May Change

If Proposition 19 is approved, will California businesses still be allowed to test for marijuana use among employees? And what does the Federal government intend to do if California votes to legalize pot? On this Legal Update, we'll explore the legalities of Prop 19 and get the latest on the Don't Ask, Don't Tell appeal.

Guest:

Dan Eaton, San Diego attorney and These Days legal analyst.

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MAUREEN CAVANAUGH: I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. In the first hour of These Days, we spoke with the reporters who are featured in our new KPBS envision TV special about proposition 19. We conferred a lot of ground, but now, These Days legal analyst Dan Eaton is here to clarify some of the issues around Prop 19 and how it may change the game for some points of drug law.

DAN EATON: Good morning Maureen.

MAUREEN CAVANAUGH: Prop 19 may not only give California citizens the right to grow and posses marijuana and give counties the rights to tax distribution. But it -- remind us of existing law here in California about employers and the use of medical marijuana.

DAN EATON: Right, Maureen. In a case by the name of Ross versus raging wire telecommunications. That held if you are an at will employee who was dismissed for good cause or no cause the all, you could be fired for the presence of marijuana in your system even if it is medically authorized pursuant to the compassionate use act of 1996 which the voters passed.

MAUREEN CAVANAUGH: So the employer can usually fire an employee who fails a drug test though. Why would an employee believe --

DAN EATON: The presence of the drug was legally authorized through the medical marijuana act that allows you to use it for pain. This particular plaintiff was using it for pain, he said you cannot authorize me to use this for medical uses then allow the employer to fire me. That's contrary to public policy. What the California Supreme Court said was absolutely not. It did not change the employer's rites, otherwise, to dismiss an at will very vigorously saying that in a sense issue you're forcing the employer into a hob son's choice, into alleviating pain as authorized under the state law or to actually suffering the pain to keep his or her job.

MAUREEN CAVANAUGH: And what was the rationality of the decision of the majority on the California supreme on this.

DAN EATON: What the majority said was all the compassionate use act did was dealt with whether you could be prosecuted for marijuana offenses if it's medically related and if you have certain cards and so forth. It did not have any effect on civil law respect to the employer's broad rights to keel with their employes, employers are not required to keep someone whom they found the metabolites for marijuana employed if they are an at will employee. So that's what the majority said. They said we're not buying that the act had any effect to employers' rights.

MAUREEN CAVANAUGH: But what happens to this decision or decisions like this if California voters decide to make marijuana a legal drug.

DAN EATON: The key language in this has to do with the no employee who is allowed to -- no person who is using it, pursuant to the authorized amount which is about an ounce, can be discriminated against, and cannot have any right or privilege taken away from them pursuant to this act. What that means is that if this employee, Mr. Ross in this case, were later found to have marijuana in the system and can show that the marijuana is no greater than allowed under the Proposition 19 he could not be fired. In effect, it's something, a Proposition 19 would give people who smoked pot a privilege against being terminated unless the employer affirmatively, Maureen Cavanaugh, can show that it actually impairs, those are the words, actually impairs a job performance. What it would mean is that you couldn't be discriminated -- sexual orientation or if you are found to have smoked pot within the limits allowed by Proposition 19. It elevates this, for smoking pot, in terms of restricting an employer's right for example because of the color of their skin, it's really a very interesting proposition.

MAUREEN CAVANAUGH: This particular Proposition 19. Yeah.

DAN EATON: It is, and I just read the proposition for the first this weekend in preparing for this segment. It's fascinating because of course, all of the attention has been on the legalization aspect. But what it also does is restricts the right of employers and others to Nate, to impair the rights and or privilege was anyone who is using marijuana in the amounts that are authorized by the proposition.

MAUREEN CAVANAUGH: So, I would imagine it would stop employers from the right, their right to not hire an applicant who tests positive for marijuana in a preemptive drug test? And also why the when you're at the applicant stage, an employer can't really determine whether you -- how you were going to react to drugs and alcohol and so forth. So all applicants and there's really no privacy interest either. So all applicants will be tested. Here's the thick though, if you are limited to taking action against someone only if their job performance may be impaired by the use of it, it's hard to see how that comes into play when are talking about an applicant. Meaning an applicant can still be tested for the presence of marijuana whether their job performance would actually be impaired by the presence of the drug in their system. So it creates a fascinating problem for employers and others, and it's not limited -- in terms of no discrimination or denial of any right or privilege. Now -- , that said, it specifically says, that, look, marijuana is certainly limited to certain places, and it also says that nothing prohibits an employer from taking action, against an employer who uses marijuana in a way that actually impairs the job perform apse, but that's really the limit of an employer's right to take action against know employee who's using marijuana.

MAUREEN CAVANAUGH: I'm speaking with These Days legal analyst Dan Eaton, and we're talking about some of the little known, little discussed aspects of prescription 19, that is the measure on the Nov. Ballot that would legalize possession of marijuana in California. It sounds as if this proposition is quite different from the initiative that allows the use did of medical marijuana in California.

DAN EATON: It is very different. In fact, the opponents in their opposing statement to proposition 19 have said that this would have no effect on the medical marijuana law. Now that may not be 100 percent correct because to the extent that people are using medical in the amount allowed by it, according to the legislative analyst, unless of proposition 19, they said there may be some drop off, of the constitutional right's medical marijuana professional a patient registry that identifies those individuals eligible under statelaw to legally purchase and consume marijuana for legal purposes, close quote. But that’s, what this is about is not the medical marijuana issue which would still be very much 234 play. Why? it says what's reasonably necessary for legal use. Check check which would vary the medical marijuana, the compassionate use act that the voters passed. But what this initiative use is aimed at is allowing recreational use, and the regime that came with it will remain in place.

MAUREEN CAVANAUGH: Now, does Prop 19 limit where marijuana can be consumed?

DAN EATON: If does. It says that it can only be limited in residences and nonpublic places. That's what the law actually -- that's practice the provision, it's not law yet, actually says. But what does if mean to be a nonpublic place? Does this mean that a person who works for they also make it clear in this proposition, is that there could be authorized establishments, that local governments could establish local establishments in the city of San Diego for example, that would allow people to smoke marijuana inside a place. That would be authorized, but the question becomes really, what is a nonpublic place? I get I residence. That's where you live.

MAUREEN CAVANAUGH: Right.

DAN EATON: But does a to the extent again that it doesn't impair your job performance?

MAUREEN CAVANAUGH: Now, would the no smoking prohibitions that we have in -- .

DAN EATON: That's an interesting question, because I haven't looked at this no smoking ordinances in a very long time. Will to the except they're framed in terms of tobacco, they would not, but it's not inconceivable, Maureen, mixed in with some people who are smoking a very different kind of cigarette. But then you would think that that would run afoul of the public places rule. Maybe they could smoke in private places, but can they then smoke outside? Probably not. Which he which he and you can't smoke inside to marijuana, then they couldn't smoke it in the work place. But do they?

MAUREEN CAVANAUGH: Let's get to another very, very complicated point of this proposition. If, indeed, the voters pass it in November. And that is the fact that marijuana is still illegal under federal law. Do we know the implications of that, and what the Department of Justice may do? Will it take any action against the State of California or enforcing federal law in California against marijuana?

DAN EATON: We certainly know approximate enforcing the law. We don't know about taking action. That's what's so interesting. The pemphlet says would continue to be prohibited under federal raw, these federal prohibitions could still be enforced by a federal agency. It is not known to what extent can the federal government will continue to enforce them, close quote. That's an ark lose to the that that I would no longer enforce marijuana laws in the 14 -- to the extent that the 14 states, include category marijuana, allow it for medicinal use. But they made it very clear check check said look, we are going it enforce the federal law this prohibit process the use of marijuana under the federal controlled substances act, we are not, in fact, we oppose Proposition 19, this is the Department of Justice because it complicates the federal government's ability to enforce these laws. By taking the local and state police out of the equation, pause it says, they can't participate in seizing marijuana if this passes.

MAUREEN CAVANAUGH: The federal government's sole responsibility in determining immigration responsibility for the United States. Could the federal government sue schnook approximate to our constitution, and article six of the constitution, it's very cheer that federal law is, quote, the supreme law of the land, close quote. And the federal government may argue as they argue in Arizona although in a different way that withholding this assistance that the federal government has traditionally gotten from local authorities frustrates the federal government's ability to enforce the federal controlled substances act. So just as they are arguing that Arizona is a law, which uses the local constitutional right to presumably help the authors is what's called impliedly preempted, impliedly blocked by the federal government's policy against marijuana. It frustrates the purpose of the federal drug law. But whether they are going to bring I challenge, the U.S. attorney general said, let's wait and see what happens.

MAUREEN CAVANAUGH: Exactly, and this is still just a proposition, from the voters have to decide in November. Just one last point about this, just to make the legality of marijuana in California more complicated, up to one ounce of marijuana what does that mean?

DAN EATON: It's still illegal, so is speeding, it's just an infraction. What it means is governor Schwarzenegger says, the judge, and the jury trial and so forth, where you're busted for marijuana of a very minor amount. That's tall does. It changes it from a misdemeanor, which does bring into play the entire play of the justice system, like speeding. Although would there be some sort of a marijuana training school? I don't know. This is very -- like traffic school. All kinds of fun possibilities, Maureen.

MAUREEN CAVANAUGH: We have to move on to something that it actually sort of breaking news. Last time you were here, you told us about a federal judge in Riverside who on first amendment grounds found the don't ask don't tell policy in the military to be unconstitutional. Now we have had a lot of exploration of information about this, the policy has come to a halt ooh the same judge has issued a now is going it stay that injunction or allow it to continue until the appeals process plays out.

DAN EATON: That's exactly right. And in fact they just had argument on this just yesterday, marijuana, and the judge, in her tentative ruling indicated she was inclined not to grant a stay because she doesn't believe that the government has shown that it would be harmed by leaving the stay in place. Which would prevent the continued enforcement of the don't ask don't tell policy. That means the Department of Justice is very business, and they probably have already deputy this, file aid brief with the United States court of appeal for the ninth circuit seeking such a stay. Understand that we saw this same process play out when judge van walker for a stay of his ruling invalidating that appropriation on constitutional grounds, then,ing, the ninth circuit did issue a stay of that ruling, that's what's going on right now, if the judge upholds her tentative decision to deny the stay, and there are variety of reasons they could give for that, the federal government certainly has indicated it is going to seek such a stay from the ninth circuit court of the,a peels and if the ninth circuit doesn't grant did, they could go up to the supreme court. Anthony Kennedy .

MAUREEN CAVANAUGH: Now, Dan, many people are surprised that the Obama administration is actually appealing this ruling which destroys, gets rid of the don't ask don't tell policy in the military, because president Obama has come out on a number of occasions, saying he wants to see this policy repealed. But does the Obama administration have any -- did they have any choice but to appeal the ruling of judge Phillips 72 nay have a choice in the broadest conceptual sense that we all have a policy. let's be clear -- cited is in the of national security. So what's the objection about? It's a matter of process, Maureen, what the president and the Secretary of Defense, and his under secretary said that this ruling is very, bankrupt. This federal judge is say doing it now, in effect. That's what she's saying, what they will prefer is a congressional repeal of don't ask don't tell, which would allow more time for administrative regulations to be put in place. And a more orderly process for dismantling -- and presumably the reason they are continuing to appeal is because of the very abrupt nature of the judge's order, which requires an immediately dismantling of a policy and all that goes with it, that has been in place for over a decade.

MAUREEN CAVANAUGH: This perhaps is just me and my ignorance on the subject, but what kind of jurisdiction does a federal judge have in determining a policy in the military?

DAN EATON: Well, of course, the federal courts have broad jurisdiction over, for example, federal officers, including the secretary will of defense. But the jurisdictional question, then to say how far she ask rule, it will likely be a very hotly contested issue on appeal, does she really have the power to go as far as she did, but as matter, yes, federal judges have the right to issue orders that restrain or require federal officers to do or not to do certain things, they are under her jurisdiction, the question is whether she can go as far as she did with respect to this policy. And of course, whether she can, she was right on the merits of whether don't ask don't ask is in fact constitutional under the first amendment of the constitution, and the .

MAUREEN CAVANAUGH: You just explained to us why the justice administration, the Department of Justice is appealing this particular ruling. Judge Phillips actually noted in her ruling that the justice administration, the Obama administration, didn't put on much of a case before her to counter the log cabin Republicans' request that don't ask don't tell be repealed. .

DAN EATON: The justice department put up a vigorous fighter on this, but it was a fight on the law, not on the facts. What judge Phillips noted was that the Department of Justice had put on no factual evidence at all. Whereas the log cabin Republicans put on I great deal of evidence. the lawsuit and the legislative history, because it was a constitutional challenge to that. And that's what they are going to argue, presumably, that this is constitutionally permissible, it was a are constitutionally permissible choice by Congress. Especially given the deference particularly with respect to free speech, which was one of the grounds on which judge Phillips ruled. That is really the basic structure of the argument, and why they are vigorously contesting this ruling even while they did not put on any factual evidence that they thought was relevant in determining whether the tonight ask don't tell law was constitutionally valid or not.

MAUREEN CAVANAUGH: Tell us one more time what we can see now as these legal wheels start to furn. What should we see next?

DAN EATON: Next stop is the ninth circuit motions panel. And the ninth circuit can be expected to act fairly quickly. If the ninth circuit is to stay pending an appeal, then you'd expect no action until the ninth circuit actually rulings if they deny the stay, however are, if they deny the request for the stay, Chen you can expect -- and ask that court, the high court to issue an immediate stay of this pending fall of appeals, then it will be fascinating to see, whether, the expedited or sped up briefing in this case, to come to a resolution, sooner rather than later.

MAUREEN CAVANAUGH: Thank you so much. You took us through so much. I appreciate it.

DAN EATON: There was a lot.

MAUREEN CAVANAUGH: I've been speaking with KPBS legal analyst San Diego attorney Dan Eaton. If you would like to comment, please go on-line, KPBS dot.org slash These Days. Coming up, I new book will tell us some of the most bizarre cases encountered by psychiatrist, doctor Gary small.